Foreign Relations of the United States, 1981–1988, Volume XLI, Global Issues II

114. Memorandum From the Acting Under Secretary of Defense for Policy (Kramer) to Secretary of Defense Weinberger¹

Washington, February 12, 1981

SUBJECT

• Law of the Sea Negotiations

(C) The Tenth and potentially final session of the Third United Nations Conference on the Law of the Sea will convene in New York in March. Since a reorganization of the various law of the sea offices in the Department of Defense in 1978, the Department has been represented in law of the sea matters by Vice Admiral Shannon D. Cramer, Jr., U.S. Navy (retired), who has reporting responsibilities both to the Secretary of Defense and the Chairman, Joint Chiefs of Staff. The most recent Conference session, held in Geneva last summer, produced a Draft Convention on the Law of the Sea (Informal Text).² I anticipate a senior-level interagency review of this draft treaty text in the near future.³

(C) The Department of Defense consistently has taken the position that a comprehensive, acceptable and widely supported Law of the Sea Convention is in the best interests of the United States from a national security standpoint. The Department therefore has supported the negotiating objectives of Ambassador Elliot Richardson, former Head of the U.S. Delegation, and of his successor, Ambassador George Aldrich, acting Delegation Head. The Draft Convention contains important provisions to advance Department of Defense interests in the preservation of critical navigation and overflight rights.

—The Draft Convention would set internationally agreed limits upon heretofore expansive unilateral maritime claims of coastal states, by restricting them to a 12-nautical mile territorial sea, a 24-nautical mile contiguous zone, and a 200-nautical mile resource-oriented exclusive economic zone.

—The text provides for “transit passage” through and over the approximately 116 international straits which would be overlapped by 12-mile territorial seas, and archipelagic passage through and over internationally agreed sealanes in the waters of archipelagic states established in accordance with the Convention provisions. These transit rights could not be impeded, hampered or suspended by the archipelagic or straits states. Overflight rights over archipelagic sea lanes and territorial waters in straits do not exist in customary law, but would be conferred by the Draft Convention.

—Military vessels and aircraft would be exempted from the pollution provisions of the Convention.

—Military activities would, at the option of each state party to the Convention, be exempted from compulsory dispute settlement procedures. The United States would claim this exemption.

—Disclosure of information contrary to national security requirements would be precluded.

—The specific international legal regime established by the Convention for the International Seabed Authority would be limited to the development of seabed mineral resources.

(C) Despite some textual ambiguities, which the State Department has undertaken to clarify through interpretive statements supported by the most important members of the international maritime community,⁴ Vice Admiral Cramer and I believe that the Draft Convention, representing a “package deal” of compromises, is in the best interests of the United States with regard to strategic navigation and over-flight needs. On the other hand, representatives of the deep seabed mining industry have expressed opposition to the mining provisions of the Draft Convention as presently drafted. Industry representatives maintain that “assured access” to mining sites is not available under the current text, and that technology transfer requirements which would be imposed under the Convention are economically onerous and unacceptable. In addition, negotiations have yet to obtain provisions satisfactory to industry to protect investment and mining projects undertaken during the period before the treaty enters into force.

(C) From a Department of Defense standpoint, the provisions of the Draft Convention which affect our national security interests are the best that can be obtained through the process of negotiation and compromise. Protracted negotiations at this stage are considered likely to pose a significant hazard to the gains which have been achieved. In addition, the absence of the Law of the Sea Convention would leave the international community in a state of uncertainty as to the scope and effect of unilateral coastal state claims. We have, however, been faced with a problem of outward “creeping jurisdiction” and would expect to face more and more expansive claims. Accordingly, I recommend that you approve having Vice Admiral Cramer provide Department of Defense support within the Delegation for the early conclusion of negotiations along the lines of the current Draft Convention in order to preserve its national security benefits.

(U) I have shown this to Fred Ikle, who agrees.⁵

Franklin D. Kramer

1. Source: Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) Background (4). Secret.
2. In telegram 267139 to Naples, October 5, 1980, the Department summarized the draft convention. (Department of State, Central Foreign Policy File, D800477–0162)
3. See Document 118.
4. Several of these interpretive statements are scheduled for publication in Foreign Relations, 1977–1980, vol. XXV, Global Issues; United Nations Issues.
5. In a February 13 memorandum to Ikle, Kramer proposed a strategy that would order the negotiators to delay the completion of the conference. There is no indication of approval or disapproval of the strategy. (Reagan Library, Guhin, Michael A.: Files, LOS (Law of the Sea) Background (4)) In telegram 156168 to Moscow, June 15, the Department reported that Harlow had been designated as a Defense representative. (Department of State, Central Foreign Policy File, D810280–0896)